This morning, on the WBUR (Boston) radio station, a criminal trial professor (from New York) was discussing the case of Dzhokhar Tsarnaev, recently convicted of the bombing of the Boston Marathon two years ago, with hosts Margery Eagan and Jim Braude.
As you may be aware, the punishment phase of the case began today – the question is whether Tsarnaev will get the death penalty or life in prison. The hosts asked whether the defense would be able to argue, to mitigate the punishment and try to avoid the death penalty for their client, that the older brother, Tamerlan, who died in a police shootout (and after being run over by his brother!), was the one truly behind the bombing — essentially that Dzhokhar was “under the influence” of his brother.
The lawyer being interviewed was asked whether, if Dzhokhar doesn’t want to use that defense, but rather considers his brother to be a hero in avenging US aggression overseas (comments he scrawled in ink and blood on the tarp covering the boat in which he hid before being arrested), could Dzhokhar deny his lawyers permission to use that defense theory. The lawyer said that it is clear that he could not forbid his lawyers from arguing that, and opined that these were merely “trial” tactics that are not in the client’s control, but rather in the hands of the lawyers.
I was frustrated that the radio show was not taking calls, as I was eager to dispute that conclusion, and to point out that this type of lawyering is far different from that which we in the clinical community practice as we guide our students through the principles of client-centered lawyering. It was anathema to me to hear the role of the client completely discounted.
Criminal law is not my expertise, but it made me wonder whether my assumptions about clinical teaching don’t apply in criminal and/or death penalty clinics. In a death penalty case, after conviction, at the sentencing stage, does the defendant lose the right to control his/her defense? I’m eager to hear the views of those teaching criminal clinics.